Punishment (uquba): fixed, retaliatory and discretionary

العُقُوبَة

In the lexicon, uquba is a penalty, a noun from 'iqab; as a term it is the penalty fixed for a wrong, or what falls on a person as a deserved consequence of an offence ¹. Penalties are classed by kind, as retaliation, fixed punishment (hadd) and discretionary punishment (ta'zir); by whether the right belongs to God, to people, or to both; and by whether they are complete, incomplete or carry an element of worship ². Other penalties include the ghurra for a foetus and the arsh for an injury, and the killer's loss of inheritance and bequest, on the prophetic instruction that the killer has no share in the inheritance ² ³. The fixed punishments are determined by the law: illicit intercourse, false accusation, drinking, theft and brigandage, and by disagreement, apostasy and rebellion ³. Discretionary punishment is not fixed by the law and serves to deter and reform; flogging, imprisonment and reproof are allowed, while maiming, slapping the face, burning and shaving the beard are not ³ ⁴. Some jurists allow penalties of different kinds to be combined for one offence, and penalties of the same kind and cause overlap ⁴ ⁵.

Summary

In the lexicon, uquba is a penalty, a noun from 'iqab; as a term it is the penalty fixed for a wrong ¹.

Its divisions

Penalties are classed by kind (retaliation, fixed punishment and discretionary punishment), by whether the right is God's or people's or both, and by whether they are complete, incomplete or carry an element of worship ².

Other penalties

These include the ghurra for a foetus, the arsh for an injury, and the killer's loss of inheritance and bequest ² ³.

Fixed and discretionary punishments

The fixed punishments are set by the law: illicit intercourse, false accusation, drinking, theft and brigandage, with apostasy and rebellion disputed ³. Discretionary punishment is not fixed; flogging, imprisonment and reproof are allowed, while maiming, slapping the face, burning and shaving the beard are not ³ ⁴.

Combination and overlap

Some jurists allow penalties of different kinds for one offence; penalties of the same kind and cause overlap ⁴ ⁵.

Where to look further

Retaliation is treated under «qisas», discretionary punishment under «ta'zir», and overlap under «tadakhul» ⁴.

Sources

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11776

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11777

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11778

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11779

al-Mawsu'a al-Fiqhiyya al-Kuwaitiyya, Noor-Book copy (file named v3) , p.11780

Biting and the liability for injury it causes (add)

In the lexicon, add is gripping a thing with the teeth and holding it. If a person bites another without right and a wound results, the biter must pay the damages for the wound, assessed as a just award by experts. If one man bites another's hand and the bitten man pulls it free so that the biter's front teeth fall out, most jurists hold that there is no liability, relying on a prophetic judgement in such a case; the Shafi'is limit this to a bitten man who chose the easiest means of release, and the preferred Maliki view requires compensation.